134 F.

3d 1177

55 Soc.Sec.Rep.Ser. 336, Unempl.Ins.Rep. (CCH) P 15824B

Frank DeCHIRICO, Plaintiff-Appellant,
v.
John J. CALLAHAN, Acting Commissioner of the Social
Security
Administration, Defendant-Appellee.
No. 248, Docket 97-6026.

United States Court of Appeals,

Second Circuit.
Argued Sept. 26, 1997.
Decided Jan. 26, 1998.

Toby Golick, Cardozo Bet Tzedek Legal Services, New York City, for
Plaintiff-Appellant.
Stanley N. Alpert, Assistant United States Attorney, New York City, for
Defendant-Appellee.
Before MESKILL and CALABRESI, Circuit Judges, and KOELTL,*
District Judge.
Judge MESKILL concurs in part and dissents in part in a separate opinion.
CALABRESI, Circuit Judge:

Is a leg amputation a per se disabling condition under the Social Security

Regulations, 20 C.F.R. 404.1520(d) & Pt. 404, Subpt. P, App. 1, 1.10, if the
amputee cannot reasonably obtain a properly fitting prosthesis that will allow
the wearer to walk without an "obligatory assistive device" such as a cane? We
conclude that it is. Because, however, the plaintiff did not meet his burden of
showing that he was in fact unable to obtain a properly fitting prosthesis, we
affirm the denial of benefits.

Background

Frank DeChirico is a thirty-eight year old man who received disability benefits
for over nine years following a 1981 motorcycle accident in which he sustained
injuries that ultimately resulted in the amputation of the lower portion of his left
leg. He now wears a prosthetic limb. In 1990, DeChirico's benefits were
terminated because he was incarcerated. See 20 C.F.R. 416.1325 (providing
for suspension of benefits to a recipient who is a resident of a "public
institution"); 20 C.F.R. 416.1335 (providing for termination of benefits
following twelve consecutive months of benefit suspension). On November 24,
1992, just prior to his release from prison, DeChirico reapplied for disability
benefits.

Following a hearing, the administrative law judge ("ALJ") determined that

DeChirico was not disabled, and denied his application. The ALJ made the
following factual findings: (1) DeChirico had not worked since the late 1970's
(prior to his accident). (2) He suffered from a "severe" impairment--the leg
amputation--but "[did] not have an impairment or combination of impairments
listed in, or medically equal to one listed in" the Social Security regulations
defining per se disabling conditions.1 (3) His "subjective testimony as to
'disabling' ... impairment [was] not supported by objective medical evidence
and [was] therefore not credible in establishing [a] 'disability.' " (4) He has the
residual functional capacity "to perform the full range of 'sedentary' and 'light'
work." (5) His age falls into the category of "younger" under the regulations.
(6) He has a high school equivalency degree. And (7) he is not "disabled."

The Appeals Council denied DeChirico's request for review, thereby making
the ALJ's ruling the final decision of the Commissioner. See Perez v. Chater,
77 F.3d 41, 44 (2d Cir.1996); 20 C.F.R. 404.981, 416.1481. DeChirico then
appealed the decision in the district court (Eugene H. Nickerson, Judge ), which
granted the Commissioner's motion for judgment on the pleadings and
dismissed the action. DeChirico now appeals that ruling, arguing (1) that the
ALJ erred in concluding that he was not disabled per se; (2) that the ALJ also
erred in failing to subpoena DeChirico's Social Security file from the nine-year
period when (prior to being incarcerated) DeChirico was receiving disability
benefits; and (3) that there was insufficient evidence to support the ALJ's
conclusion that DeChirico was capable of performing sedentary or light work.

Discussion
I. The Applicability of Listing 1.10
5

The Social Security regulations establish a five-step process for evaluating

disability claims:

6
First,
the [Commissioner] considers whether the claimant is currently engaged in
substantial gainful activity. If he is not, the [Commissioner] next considers whether
the claimant has a "severe impairment" which significantly limits his physical or
mental ability to do basic work activities. If the claimant suffers such an
impairment, the third inquiry is whether, based solely on medical evidence, the
claimant has an impairment which is listed in Appendix 1 of the regulations. If the
claimant has such an impairment, the [Commissioner] will consider him disabled
without considering vocational factors such as age, education, and work experience;
the [Commissioner] presumes that a claimant who is afflicted with a "listed"
impairment is unable to perform substantial gainful activity. Assuming the claimant
does not have a listed impairment, the fourth inquiry is whether, despite the
claimant's severe impairment, he has the residual functional capacity to perform his
past work. Finally, if the claimant is unable to perform his past work, the
[Commissioner] then determines whether there is other work which the claimant
could perform.... [T]he claimant bears the burden of proof as to the first four steps,
while the [Commissioner] must prove the final one.
7

Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir.1982).

The ALJ in this case determined that DeChirico was not performing substantial
gainful activity and that his amputation constituted a "severe impairment."
Thus, DeChirico's claim survived the first two steps of the inquiry. The ALJ
concluded, however, that DeChirico could not be deemed per se disabled at
step three because his severe impairment did not qualify under Listing 1.10.
Having so determined, the ALJ then went on to find that DeChirico had no past
relevant work (step four), but that he could perform "sedentary" or "light" work
(step five). DeChirico argued on appeal to the district court, and again in this
court, that the ALJ erred in failing to find him per se disabled at step three,
which would have made him eligible for benefits regardless of steps four and
five.

The Social Security regulations list certain impairments, any of which is

sufficient, at step three, to create an irrebuttable presumption of disability. See
20 C.F.R. 404.1520(d), 416.920(d); see also id. at Pt. 404, Subpt. P, App. 1
(listing of per se disabling conditions). The regulations also provide for a
finding of such a disability per se if an individual has an impairment that is
"equal to" a listed impairment. See id. 404.1520(d) ("If you have an
impairment(s) which ... is listed in appendix 1 or is equal to a listed
impairment(s), we will find you disabled without considering your age,
education, and work experience.").

10

Persons who, like DeChirico, have leg amputations at or above the tarsal region

10

(i.e., the ankle) are disabled per se if they meet any of a number of other criteria
specified in the regulations. See id. at Pt. 404, Subpt. P, App. 1, 1.10 ("Listing
1.10"). The only "listed" criterion relevant to this case is:

11 Inability to use a prosthesis effectively, without obligatory assistive devices, due

C.
to one of the following:
....
12
13Stump too short or stump complications persistent, or are expected to persist, for
3.
at least 12 months from onset....
14

Listing 1.10.C.

15

DeChirico testified at his disability hearing that, because of ongoing problems

wearing his prosthesis, he had difficulty standing and could not walk at all
without a cane--which qualifies as an "assistive device." See, e.g., Walker v.
Bowen, 826 F.2d 996, 998 (11th Cir.1987) (quoting medical evidence treating a
cane as an assistive device); 14 C.F.R. 382.41(c) (requiring airlines to permit
disabled passengers "to stow canes and other assistive devices" near their
seats); 42 C.F.R. 488.115, at 727 (stating that the dining areas of nursing
homes must have "sufficient space between tables to allow for safe passage of
wheelchairs and residents with walkers, canes and other assistive devices").

16

According to DeChirico, his health problems at the time he sought disability

coverage included, inter alia, stump scarring and intermittent inflammation or
"skin breakdown" on the stump. He further argues that most or all of these
difficulties resulted from prosthesis intolerance (the inability to obtain a
prosthesis that fits properly and causes no injury to the wearer). The
Commissioner responds that there was ample evidence in the record to support
the ALJ's decision that DeChirico could use his prosthesis effectively, and
hence that DeChirico was not per se disabled. DeChirico denies that the
evidence supported that conclusion. We review the sufficiency of the evidence
in light of the requirements of Listing 1.10.

17

Although we have not had occasion to interpret Listing 1.10, the Ninth and
Tenth Circuits each have done so.2

18

Gamble v. Chater, 68 F.3d 319 (9th Cir.1995), was the first case to analyze the
relevant portions of the listing. Gamble was an amputee who had suffered from
various stump complications, including skin breakdown and pressure sores. Id.
at 320. The medical evidence was clear that Gamble's ill-fitting prosthesis had

caused these problems and had left him unable to walk without crutches
("assistive devices"). See id. A new prosthesis had been prescribed to treat the
complications, but was not reasonably available to Gamble. The ALJ concluded
that Gamble's inability to get a suitable prosthesis did not constitute "stump
complications" under Listing 1.10, and denied the application.
19

The Court of Appeals for the Ninth Circuit reversed. It held that Gamble
qualified under Listing 1.10 because his inability to obtain the new prosthesis
forced him to continue wearing one that did not fit. And, for that reason, he
could not use his prosthesis effectively without crutches. The court concluded
that "a person whose leg was amputated at or above the tarsal region satisfies
Listing 1.10 if he is unable to use any prosthesis that is reasonably available
to him," id. at 322, regardless of whether "somewhere on the planet there exists
a prosthesis that the claimant could use," id. Since the Commissioner offered
"no legitimate reason or explanation why an amputee who is unable to obtain a
prosthesis should be treated differently from any other disabled person who [is
entitled to benefits because he] cannot obtain the treatment, therapy, or medical
device that he needs," id., the court reversed and remanded with instructions
that Gamble be awarded benefits.

20

In Puckett v. Chater, 100 F.3d 730 (10th Cir.1996), the Court of Appeals for
the Tenth Circuit took a somewhat different view of Listing 1.10. The specific
ground on which that Court rejected the disability claim in Puckett seems to
have been that, on the particular facts of the case, the court did not believe that
the claimant (who had used a prosthesis successfully for twenty years until it
broke) could not obtain an adequate replacement. In reaching that conclusion,
however, the court also stated that:

21

We believe Listing 1.10 plainly requires stump complications, not problems

with prosthetic fit.... [The listed] conditions all relate to problems of the
claimant's body itself. Problems with technicians' ability to repair or replace a
prosthesis that a claimant used satisfactorily for twenty years does not fall
within the scope of the listing.

22

Id. at 733.

23

We read the Puckett court's statement to mean that the inability to obtain a
well-fitting prosthesis is not disabling per se unless it either results from or
leads to a medically observable condition in the wearer's body. This view is
wholly consistent with Gamble, for in Gamble the claimant's old prosthesis
caused pressure sores and skin breakdown.

24

We believe that this view is the correct one, and, indeed, is the only one that
comports with the language of Listing 1.10.C.3. That listing defines "stump
complications" as one of the conditions that may qualify as disabling per se.
And there is no valid ground for distinguishing between unresolvable stump
complications that result from improper prosthesis fit (such as those that
Gamble suffered) and the same symptoms that arise for other reasons.
Specifically, we see no legitimate basis in the regulations or the listing for
concluding that the term "stump complications" excludes such physical
ailments of the stump as chronic infections caused by an improperly fitting
prosthesis, while including similar infections that derive from the amputation
process itself, or from the shape and character of the stump. For that reason, we
agree with the Court of Appeals for the Ninth Circuit that prosthesis intolerance
constitutes a stump complication under Listing 1.10, and that it does so as to
all complications that flow from an amputee's inability "to use any prosthesis
that is reasonably available to him." Gamble, 68 F.3d at 322.

25

Even if we were not persuaded that Listing 1.10 specifically covers

individuals who suffer complications because of their inability to obtain a
properly fitting prosthesis, we would nonetheless conclude that such a
condition is equal to a listed impairment, and hence is also disabling per se. The
Social Security regulations provide that, "[i]f you have an impairment(s) which
meets the duration requirement and is listed in appendix 1 or is equal to a listed
impairment(s), we will find you disabled without considering your age,
education, and work experience." 20 C.F.R. 404.1520(d), 416.920(d)
(emphasis added). Because there is no meaningful difference between
complications resulting from poor prosthesis fit and complications developing
for other reasons, such problems (if they cannot be resolved by the application
of a suitable prosthesis that is reasonably available to the claimant) are
undeniably "equal to" the other conditions specified in Listing 1.10. For this
reason, too, prosthesis fit problems of the nature suffered by Gamble, and
alleged in this case by DeChirico, can result in per se disability.

II. The ALJ's Finding of No Disability Per Se

26
27

Reviewing the evidence in the record in light of Listing 1.10's requirement

that a prosthesis fit problem must either be caused by or result in a medically
observable condition in the wearer, we uphold the ALJ's factual findings and
affirm the denial of benefits. See Keefe v. Shalala, 71 F.3d 1060, 1062 (2d
Cir.1995) (the findings of fact in a disability determination must be upheld if
they are supported by substantial evidence).

28

To be sure, there is substantial evidence in the record that DeChirico, since at

least September 1990, has had significant problems wearing a prosthesis. In

particular, DeChirico's prison record, the recommendations of treating
physicians Albert Fleischer, Stanley Soren, and Stephen Nadler, and the report
of examining physician Joseph Fulco of the New York State Department of
Social Services Office of Disability Determinations would certainly have been
sufficient to support a finding that DeChirico was disabled per se. But there was
also substantial evidence in the record from which the ALJ could have
reasonably concluded that a properly fitting appliance would have solved
DeChirico's problems.
29

For example, Dr. Soren stated that DeChirico was disabled pending receipt of a
new prosthesis. This comment can be taken to mean that Dr. Soren believed
that a suitable prosthesis was reasonably available to DeChirico, and that
receipt of such an appliance would solve DeChirico's stump problems. This fact
is especially germane because Dr. Soren also reported that DeChirico's stump
was not inflamed. Moreover, the record does not indicate whether DeChirico
received the new prosthesis Dr. Soren prescribed, so there is no evidence that
DeChirico tried a substitute prosthesis unsuccessfully.

30

Similarly, from September 1990 to October 1991, there is no reference in

DeChirico's prison medical records to any problems with his prosthesis or
stump. In the absence of testimony or other evidence that DeChirico's
difficulties continued throughout that period, the ALJ could reasonably have
inferred that DeChirico used a prosthesis effectively for thirteen months. And
DeChirico offered no testimony, medical report, or other evidence to show that
his stump complications persisted at that time. This fact is not only significant
in itself, but also suggests that when a proper prosthesis was made available,
DeChirico may not have been disabled.

31

Specifically, DeChirico received a new prosthesis sometime before September

1990. At that time, according to prison health service medical records, the
"new" prosthesis was "definitely too small on thigh & too large at calf--needs
adjust. if possible." There is no indication whether any such adjustments were
successfully made. But the prison medical records, which detail no further
complaints by DeChirico until October 9, 1991, are consistent with the
conclusion that the adjustments were in fact made and were successful. They
therefore can also be taken as support for a finding that, at the later times when
DeChirico did complain, his complications could have been resolved by fitting
him with an effective prosthesis. There are, moreover, no grounds for believing
that such an appliance was not reasonably available to him.

32

Under the circumstances, we cannot say that the ALJ's finding that DeChirico

32

did not have a listed impairment (or its equivalent) was unsupported on the
record. This does not mean, of course, that DeChirico is barred from filing a
new application for benefits, supported by evidence of prosthesis-induced
stump complications sufficient to lead--or indeed require--an ALJ to find him to
have a per se disabling condition.

III. Failure to Subpoena Prior Disability File

33
34

DeChirico also claims that, in light of our decision in Mimms v. Heckler, 750
F.2d 180 (2d Cir.1984), reversal is warranted because the ALJ failed to
requisition or subpoena the disability file for the nine-year period when
DeChirico had previously received disability benefits. Mimms involved a
former truck driver who had been paid benefits from 1977 to 1980. Those
benefits terminated when Mimms voluntarily attempted to go back to work. He
was soon fired, however, because he was unable to perform his job duties.
Accordingly, he submitted a new application for benefits, but that application
was denied. He pursued his administrative remedies, pro se, and the ALJ
denied his claims. On appeal, we reversed and remanded, concluding that the
ALJ had improperly disregarded Mimms' testimony concerning disabling pain.
In reaching that conclusion, we also stated:

35

In a case such as this, where the claimant was unrepresented by counsel in the
proceedings before the ALJ, "a duty devolves on the hearing examiner to
scrupulously and conscientiously probe into, inquire of, and explore all the
relevant facts surrounding the alleged right or privilege." After a careful review
of the transcript of the disability hearing conducted by the ALJ, we find that he
failed to adequately develop the record so as to provide Mimms with a full and
fair hearing. Specifically, despite the fact that the claimant testified that he had
been determined disabled in June of 1977 and had received disability benefits
until October 1980, when he voluntarily attempted to resume gainful
employment, the ALJ failed to ask one question of the claimant about his prior
disability and its relationship to the disability claim he was now pursuing
before the ALJ. The existence of a prior established disability is highly relevant
when the nature of that disability appears to be the very same cause of the
alleged disability then under examination.

36

Id. at 185 (citation omitted). DeChirico argues that "[t]he holding of Mimms,
applied to the facts of this case, would require at the least a remand with
directions to the agency to obtain and consider the records concerning the
claimant's prior nine year receipt of benefits," because those records were
"highly relevant" to both step three and step five of the evaluation of his current
claim.

37

The Commissioner counters that the old disability file would shed no additional
light on DeChirico's claims, and asserts that the ALJ's review of the medical
records from DeChirico's period of incarceration was sufficient to establish his
prior medical history. In so arguing, the Commissioner relies in part on Social
Security Administration guidelines providing that "an ALJ May Not Need the
Prior Claim File" when "[a]t least four years have elapsed between the date of
the prior notice of initial determination and the date of the new application."
Social Security Administration Office of Hearings and Appeals, HALLEX:
Hearings, Appeals and Litigation Law Manual ("HALLEX Manual "), I-2110D (June 1994).

38

DeChirico is correct that, by statute, the ALJ was required not only to develop
DeChirico's complete medical history for at least the twelve-month period prior
to the filing of his application, but also to gather such information for a longer
period if there was reason to believe that the information was necessary to
reach a decision. See 42 U.S.C. 423(d)(5)(B) (as incorporated by 42 U.S.C.
1382c(a)(3)(G)); 20 C.F.R. 416.912(d). Similarly, Social Security regulations
required the ALJ to subpoena DeChirico's prior disability file if it was
"reasonably necessary for the full presentation of [the] case." 20 C.F.R.
416.1450(d)(1). And the fact that the HALLEX Manual guidelines specify that
ALJs may not need prior files that are more than four years old does not
purport to alter the statutory duty to develop the record fully by reviewing older
materials when doing so is necessary to render a fair determination.

39

Nevertheless, this case presents very different circumstances from Mimms.

Mimms involved a pro se claimant whereas DeChirico was represented by
counsel in the administrative proceedings. Pursuant to Social Security
regulations, a party "who wish[es] to subpoena documents or witnesses must
file a written request for the issuance of a subpoena with the administrative law
judge .... stat[ing] the important facts that the witness or document is expected
to prove; and indicat[ing] why these facts could not be proven without issuing a
subpoena." 20 C.F.R. 416.1450(d)(2). While DeChirico is surely correct to
argue on appeal that his old disability file might have proven to be "highly
relevant," counsel's letter requesting the subpoena did not include any of the
required information. In fact, the only justification for a subpoena that counsel
offered was the single statement that "[w]e believe there is material in
[DeChirico's] previous file that may be useful to the present case." In other
words, the petition in no way complied with the requirements of 416.1450(d)
(2).

40

The statutory duty of an ALJ to issue subpoenas or take other actions sua
sponte as necessary to develop the record applies, of course, to all claimants,

see 42 U.S.C. 423(d)(5)(B) (as incorporated by 42 U.S.C. 1382c(a)(3)(G));

20 C.F.R. 416.912(d), 416.1450(d)(1), and not just to those who appear pro
se. But because DeChirico was represented by counsel, because the fact of his
impairment was not in dispute, and because counsel offered no other reasons
that the ten-year old file might be relevant, we cannot say that the ALJ abused
his discretion in failing to subpoena it on his own initiative.
IV. Sufficiency of the Evidence of Residual Functional Capacity
41
42

Finally, DeChirico argues that there was insufficient evidence to permit a

determination at step five that he was capable of performing sedentary or light
work. But this conclusion by the ALJ was based on the reports of DeChirico's
treating physicians. For example, Dr. Fleischer stated that, if DeChirico used
the correct prosthesis and was careful, he could go to school or do a sedentary
job. Similarly, Dr. Nadler reported that DeChirico could "tolerate light manual
activities for a limited period of time." All this and other medical evidence in
the record is sufficient to support the ALJ's factual findings at step five. See
Keefe, 71 F.3d at 1062.

Conclusion
43

We have considered all of DeChirico's arguments. On the administrative record

before us, the district court's affirmance of the ALJ's ruling is affirmed.
DeChirico is, of course, free to file a new application for benefits, pursuant to
the relevant regulations, and to present new evidence of his disability at that
time.

44

MESKILL, Circuit Judge, concurring in part and dissenting in part:

45

I join in the majority's holding that the Commissioner's decision is supported by

substantial evidence, but write separately to dissent from part I of the opinion's
Discussion. Specifically, I object to the majority's suggestion that, under Listing
1.10.C., we assess a claimant's "[i]nability to use a prosthesis effectively"
against only those prostheses that are "reasonably available " to the claimant
(quoting Gamble v. Chater, 68 F.3d 319, 322 (9th Cir.1995) (emphasis added)).

46

In Gamble, the claimant suffered stump complications caused by an ill-fitting

prosthesis. The court held that notwithstanding the existence of a properly
fitting replacement prosthesis, the claimant had demonstrated an "[i]nability to
use a prosthesis effectively" because the well-fitting replacement prosthesis
was unaffordable and therefore not "reasonably available." Here, although
neither party has argued or briefed the merits of Gamble 's construction of

Listing 1.10.C., the majority in dicta nonetheless expresses its agreement with
Gamble. DeChirico's sole argument under Listing 1.10.C. was that the
injuries resulting from his use of six prostheses demonstrated that he could not
use any prosthesis without injury. DeChirico did not argue in the alternative
that, in the event the court determined that a serviceable prosthesis did exist, he
nevertheless would meet Listing 1.10.C. because the replacement prosthesis
was not "reasonably available." Accordingly, the Commissioner, responding
only to DeChirico's arguments and unaware that the majority would consider
this unaddressed issue, did not have the opportunity to contest the merits of
Gamble.
47

I, therefore, would limit the majority's discussion of Gamble to the issues

actually raised in this case, namely, whether a claimant's inability to use a
prosthesis without causing himself injury constitutes a stump complication
under Listing 1.10.C., and whether substantial evidence supported the
Commissioner's decision that DeChirico could use a prosthesis effectively. The
language of Listing 1.10.C. does not expressly limit our assessment of a
claimant's ability "to use a prosthesis effectively" to those prostheses that are
"reasonably available." Nor is it clear that this limitation reflects sound policy.
See Social Security Acquiescence Ruling 97-2(9) (acquiescing to Gamble only
in the Ninth Circuit). I prefer to refrain from supporting this construction until
the issue of availability has been squarely raised in this Circuit. Notably, the
majority expressly reminds DeChirico that he is not barred from filing a new
application for benefits. The majority's unsolicited approval of Gamble might
be construed as an invitation to DeChirico to refile his claim using Gamble 's
reasoning. If the majority intends to send that message, I strenuously object. We
should not give an advisory opinion that may commit our Court to a position on
an issue that has not been argued.

The Honorable John G. Koeltl, District Judge of the United States District
Court for the Southern District of New York, sitting by designation

The ALJ also found that DeChirico does not have severe "psychiatric"
impairments

The First Circuit has also interpreted Listing 1.10. In Gagnon v. Secretary of
Health & Human Services, 666 F.2d 662 (1st Cir.1981), a case on which the
Commissioner relies here, that court considered whether the ALJ erred in
finding no listed disability where the claimant had, while wearing a leg
prosthesis, worked on construction projects for some twenty-one years doing
"very heavy" and "exceedingly dangerous" work. When the claimant's stump

became infected, he applied for disability benefits on the grounds that he found
it difficult to use his prosthesis, and that uneven postural development resulting
from the amputation (as well as some other, unrelated medical problems) left
him unable to work. See id. at 663. The First Circuit concluded that the ALJ's
implicit finding that the claimant could use a prosthesis effectively was
supported by substantial evidence in the record (although it vacated and
remanded on other grounds). See id. at 664. Gagnon is not helpful in deciding
this appeal, however, because the disability claim in that case was not based on
any prosthesis fit problems, and because it apparently did not involve a
claimant who used an obligatory assistive device